6 November 2011

O'Neill QC: referendum "has a high chance of being struck down by the courts..."

"We need to talk about the referendum", writes Scottish advocate Aidan O'Neill QC over at the UK Supreme Court blog. In cases likely to have come to your attention, most recently O'Neill appeared before the UK Supreme Court as it determined the legal competence of Holyrood's pleural plaque legislation, putting in a rather snappier performance in defence of the Act than learned counsel for the Lord Advocate.

In his short article, O'Neill turns his attention to an issue which has much exercised this blog and blogger over the past few years: the shoogly legal competence of any referendum on independence passed by Holyrood. O'Neill's intervention is significant, not least because he is a prominent public lawyer, well-versed in the jurisprudence slowly developing concerning Holyrood's powers and their limits - and critically, just the sort of fellow a potential litigant, wishing to challenge the lawfulness of the independence referendum, might wish to instruct to pursue their case, and waylay the plebiscite. O'Neill argues that the referendum Act "has a high chance of being struck down by the courts as not law", and citing the AXA litigation as a salutary example of law's delays, echoes my profound concerns along the same lines. He makes a number of further points in the piece. Here's a short excerpt...

"... any Act of the Scottish Parliament which “relates to” the union between Scotland and England, or the constitutional position of the Crown or the UK Parliament, will simply not be law because any such Act would be outside the legislative competence of the Scottish Parliament to pass. On the face of it, this presents an insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland. How else might any such measure, in terms of both its purpose and effect (see Martin and Miller v HM Advocate [2010] UKSC 10), be described other than as “relating to” these reserved aspects of the constitution? As Lord Sewell, the promoter of the Scotland Bill in the House of Lords, advised Parliament:

“[A]s the Bill stands the Scottish Parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter. …. [L]egislation for a referendum on independence would be legislation about whether the Union should be maintained and so be beyond the competence of the [Scottish] parliament.”

O'Neill's piece is obviously not the final word on the legality of an independence referendum, nor are the arguments he adduces necessarily the decisive arguments. However, for a lawyer as well-versed as O'Neill to be making these points surely ought to wake nationalists from their dogmatic slumbers, dismantling the assumptions that the independence referendum is unchallengably within Holyrood's competence to command, simply because the SNP leadership refuses to discuss in public what they apprehend privately. In one respect, O'Neill is indubitably correct. We need to talk about the referendum. There are a number of ways in which these legal doubts could be eliminated, and Holyrood's powers to hold an unindictable referendum assured. I've previously suggested that SNP MPs make amendments to the Scotland Bill as it wends its way through Westminster to affect this.

Alan Trench of Devolution Matters has also suggested an alternative strategy, to permit the sort of "yes or no" referendum question which is being envisaged by many. Section 30 of the Scotland Act 1998 also allows the list of reserved matters set out in Schedule 5 to be amended by a form of subordinate legislation called, with a rather archaic, monarchical flourish, an Order in Council. This would not require further, full legislation to bring about. I'm not fussed about the method, but would heartily welcome any concrete strategy for assuring the referendum avoids legal challenges, which is not just a resort to the arts of the bluffer and confidence-trickster, which the SNP are presently employing.

Given the inactivity from the SNP benches, and the lack of forthcoming amendments in either direction to rid us of the hopelessly obscure referendum question being advanced in Holyrood, I appeal to any other parliamentarian in the House of Commons who is not a nationalist but is keen for Holyrood to hold a referendum with a clear question. It is within your power to make possible, and probably isn't possible without amending the Scotland Bill to reverse Lord Sewell's apprehension of Holyrood's limited powers. If you want to ask the Scottish people "independence - yes or no?" - the Scotland Act will have to be amended. And if this is too important to leave to the SNP, might I suggest you do something about it?

42 comments
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AON's description of the UK as a unitary state (and consequent definition of the UK 'people') seems open to some question if the UK is in fact a Union state, as is usually argued by political scientists. It has also been said many times that the failure of UK politicians to understand the difference (or to indicate any interest in the difference) is a ongoing source of error and conflict at Westminster.

Obviously, AON means and says that a Unitary concept is expressed in the 1998 legislation - hence the Scottish Parliament is also by extension defined by the same Unitary state presumption. But the UK still isn't a unitary state.

Also - for the Tory/Lib Dem coalition to strike down a referendum merely for talking about the Union (as opposed to dissolving it per se) might seem rather draconian; indeed something of a gift to the Independence movement (and not necessarily one that they are counting on, despite his Alan Cochrane-style assertion that it must be).

At other times I've noticed that AON does not acknowledge any other UK constitutional tradition than the Crown-in-parliament, which he re-asserts in his article. But it has been argued that such a tradition has existed and continues to exist. That's the thrust of the decision to reassert the Claim Of Right in the Scottish Parliament too, I think. But AON must have surely good reasons to deny such an argument.

His conclusion that the UK may vote on the dissolution of the Union and expel Scots against their will is absurd - and intended that way in order go flag up the lack of clarity that you & L&G have noted for some time. Unfortunately, as banter it is less interesting than his sketchy constitutional argument and the implied rejection of constitutional pluralism

I have to assume that AoN is not entirely sure of his ground legally. I know you will disagree but anyone looking at the sentencing over various protests can see courst involving themselves in the politics of the establishment

Scotland and England have separate legal systems as enshrined in the Treaty of Union

Scotland has the Claim of right, which enshrines in Scots law the notion that that the people are sovereign, not Parliament, and certainly not the westminster Parliament

So, is the restriction in the Scotland Act one that westminster could legally impose?

"AON's description of the UK as a unitary state (and consequent definition of the UK 'people') seems open to some question if the UK is in fact a Union state, as is usually argued by political scientists. "

If the UK is a union state and not a unitary state (if there is in fact any legal distinction) then devolution is not legitimately enacted and the devolved executive has no powers .. to call a referendum or anything else....

As the Independence of Scots Law is preserved for all time in the Treaty of Union and that to repeal the 1689 Claim of Right breaks the Treaty of Union and a concept of the sovereign people of Scotland that has been entrenched in Scots Law since 1328 that will be a 'yes' the 1689 Claim of Right statute remains in law.

The importance of the assumption of the people of Scotland's sovereignty is covered in Lord Cooper's 1953 judgement in the Court of Session where he stated that for Westminster to assume English constitutional practice at Westminster was contrary to the Treaty of Union's assertion of the independence of Scots Law for all time as while England has a habit of parliamentary sovereignty it is not Scotland's.

In modern parlance Scotland is (and always has been) a representative democracy where the people of Scotland lend their sovereignty to the Scottish Parliament. Under the 1689 Claim of Right the current Queen is only Queen of Scots because she has agreed to the contract between crown and the sovereign people of Scotland set out in the 1689 Claim of Right.

Both parliaments were only temporarily suspended under the Union Treaty. In 1999 the session of the Scottish Parliament, suspended in March 1707, was resumed. Thus the reality is the Scottish Parliament by Scottish constitutional practice and Scots Law is now where the people of Scotland lend their sovereignty and not Westminster.

As Lord Forsyth pointed out in 1997 the resumption of the Scottish Parliament means if that parliament passes a bill to reassert Scotland as an independent nation then the Union is ended. The Supreme Court tried to side step the issue in the Axa case but hidden away was a clause that stated the Acts and Laws passed by the Scottish Parliament must be respected.

With an SNP working majority in Holyrood the sections of the 1999 Scotland Act claiming reserved powers for Westminster are now moot because they can have no basis in Scots Law as they claim for Westminster sovereign powers that are not within their compass as the people of Scotland are sovereign.

Westminster is now up against the UN Charter of Human Rights (amongst other treaties) which contests Westminster's rights over the sovereign people of Scotland.

I know Lalland's tends to disagree with this position but in effect this point was conceded by the Lord Advocate on the UK Government's behalf in 1953.

Aidan O'Neill has helpfully replied on his blog to his critics, indicating the uselessness of the 1698 Claim of Right, and some further reading for the studious-minded.

And he has made the following historical point which one assumes is decisive.

"...the UK Parliament has never considered itself bound by the terms of the Acts of Union, and no court has ever struck down any provision of a UK statute on grounds of its breach of the pact of 1707."

The Treaty of union has been breached several times over, lately by where the new Supreme court is housed is but one example. Thus I am not sure that we can hold that treaty up as watertight, because it isn't.

What we need is a straight forward test, and as someone has helpfully pointed out during the axa case the supreme court bodyswerved the issue of our Claim of Right.

Seems to me that we have allowed Westminster to be supreme by convention, something that I don't believe the 1953 case refuted. A test would resolve it one way or the other. both to Scotland's ultimate benefit, because then we would not have the legal ambiguity that our erstwhile unionist opponents are desperately trying to hide behind.

There is a danger that a challenge would be mounted. It doesn't matter what we regard the legal position to be. If there is even a vague prospect of a challenge being raised in the event of a yes vote to Independence - (let us assume for now, it would be a simple yes/no referendum) - then the Unionist parties would go for it.It would be a desperate act of folly in my opinion - but I have noticed an increasingly nervous and excitable attitude from the Unionist camp these days.When you are referred to as a "separatist" with an "Agenda" you know you've rattle someone's cage.

Are people not getting a bit carried away with all this talk of Claims of Right and sovereignty and all the rest of it.

Start from the basis that there will be no legal consequences to a referendum. It will not create any new law, it will not amend, delete or otherwise impact on any existing laws. And it certainly won't make Scotland independent or change Scotland's constitutional position within the UK by one iota.

So I think you ought to put all of these arguments about who has the power to change the constitution etc to one side. Everyone knows that only Westminster has that power. Maybe we believe in principle that the Scottish people ought to be sovereign, but in point of fact they are not because only Westminster can legislate to change Scotland's constitution in any way or to end the Union.

The only reason an Act of the Scottish Parliament is needed is to put in place the arrangements for the holding of the referendum (including the question(s).)

Therefore that is the only "law" which is being made - and that is the only thing that could conceivably be challenged, so maybe people need to look at that even though it is slightly more posaic than debates about sovereignty and the Claim of Right etc.

Thanks for the responses all. In my usual style, to pick up a few points made, critiques framed and questions posed. Of necessity, this may be a little scattergun, where your points overlap.

orpheuslyre, Anonymous

I share your skepticism about O'Neill's final note about a UK-wide referendum. That isn't going to happen. Although the broader point about constitutional pluralism is not without its interest, as should be tediously plain by now, I am more directly concerned with the practical side of this suggested by Indy's contribution, contra the rather arcane - and forgive me - unnecessary formulations which Peter focusses on. Erchie, you may think my approach is flawed. That's fine and dandy. However, my flawed attitude seeks to find a way of avoiding having the referendum challenged, and the chance for the Scottish Government to ask a clear question. Since the legal competence of the referendum is at least unclear, I'd have thought that Nationalists would want to make absolutely sure the referendum couldn't be legally challenged, rather than allowing themselves to be distracted by noisy constitutional nostrums of dubious application. Even if these nostrums ultimately prove convincing, they don't have the virtue of preventing the referendum being waylaid and delayed by a litigant with a case. Indy's point is the one I'm trying to make. In terms of the identity of potential litigants to challenge the legal competence of the referendum Act, I wouldn't anticipate that the coalition government, or Labour, would remotely consider challenging the legality of referendum. I imagine they'd baulk at the very thought. And that is the critical problem some folk haven't adequately appreciated. For the referendum's legal competence to be challenged, all we need is a single, grumpy Unionist who opposes any referendum with a vengeance.

Erchie, Peter,

That may be your political position, and a potentially defensible one too. There are, I'd suggest, big problems about conflating Holyrood with an expression of popular Scottish sovereignty. It simply isn't that sort of institution, if you have a careful read of what the Scotland Act 1998 actually says. Certainly, there is nothing in the Act of Union to suggest that the devolution of powers affected by Blair's government infringes any of its articles. To get lost in constitutional history here is generally speaking just to muddle up the issues. Despite the allure of Winne Ewing's formulation, it is actually profoundly misleading to suggest that Holyrood is simply the "reconvened" Scottish Parliament suspended in 1707. In terms of its powers, it is simply a different beast, while Lord President Cooper's remarks in MacCormick v. Lord Advocate simply don't apply here. For reasons I've set out above, even if one could winnow an argument that they are relevant, they don't answer the point I'm making, and don't protect the referendum from challenge in a way I'd like to see happen.

Braveheart, James Morton,

To be absolutely clear, I am primarily concerned about a legal challenge to the referendum being mounted before rather than after the plebiscite is conducted, whatever the result might ultimately be. Such litigation could derail the whole endeavour for a year, two years. Although a positive vote for independence in that referendum would have no instantaneous legal effect, the politics of self-determination will undoubtedly rule responses to such a vote, and we'll work out the final, practical details in the polite and constructive manner one would expect. As such, I'm not really concerned about a retrospective legal challenge to the validity of the result, once the thing has been conducted. The delay's - and potential striking down of the referendum - is the thing, for me.

Ah - right the penny drops, wasn't following you completely. A challenge before the referendum can be called. Yet the unionist camp are very keen to have this referendum now, before any sort of debate can be held. Now I know they want this vote now, while the polls suggest they might win. I am wondering how the delay would help?

They are either not aware that a challenge could be raised, or feel that a delay - any delay - plays into the SNPs strengths? What are your thoughts on that? Is it the nuclear option to be used only at end of utmost need? or something the Unionists feel would be more harmful to their cause?

Yes you are correct Braveheart there will be no substantive consequences at all from the referendum. It will not, in itself, change anything. It will just give a picture of what the Scottish people want to happen.

Thereafter the ball is in Westminster's court because they are the only ones with the legal power to make changes. That can't be challenged surely.

So my point would be that any legal challenge to the referendum could not be on the basis that the constitution is reserved and the Scottish Parliament/Government has no power to change it or make laws which have any effect on the constitution or any other reserved matter. The referendum will not do that.

The challenge would have to be on the basis that the Scottish Parliament/Government has no power to ask the Scottish people a question, if that question relates to Scotland's constitutional future.

So whatever legal analysis there is ought to be focussed on that narrower issues, not about issues of who is sovereign etc because that is really a political matter not a legal matter.

James Morton - I would bet my whole house and contents that no political party would have any involvement in trying to stop a referendum happening. It would be political suicide. The only issue might be if some eccentric indivudual decided to have a go.

Set the referendum date now for say sometime in 2014, and then ask the British Government to formerly consent to this by way of legislation, to the date, to the proposed question(s). Should the request not be adhered to then an individual(from whichever quarter) could mount an early challenge on the grounds that you stated previously. ie. Do the Scottish Parliament/Government have the power to ask the Scottish people a question, if that question relates to Scotland's constitutional future without the legislative consent of Westminster.

This allows us enough time for the legal process, and to pick the grounds on which the challenge is made. Also it brings into play the Claim of Right, considering that the SNP put before the Scottish people that a referendum would take place, and this was their expressed will through the ballot box.

Perhaps the best way forward is for the SNP to secure a majority of Scottish seats at a general election and take it from there.

After all, if we, the people of Scotland, want to leave the UK, and the SNP's stands alone of the main political parties in advocating that end, all we have to do is vote for them, thereby making it clear exactly what the will of the Scottish people is.

"Yes you are correct Braveheart there will be no substantive consequences at all from the referendum. It will not, in itself, change anything. It will just give a picture of what the Scottish people want to happen."

I see, like a really expensive opinion poll... If only Eck thought the same way....

"Thereafter the ball is in Westminster's court because they are the only ones with the legal power to make changes. That can't be challenged surely."

So Westminster should hold the referendum?

...and choose the date and the question?

".... using the Scotland Bill as a vehicle ... just creates an opening to hand control to Westminster which in my view would be much more dangerous than a potential legal challenge. "

No Braveheart Westminster should not hold the referendum or try to wrest control of the process.

The SNP was elected on a mandate to hold a referendum on independence. No-one else was - and indeed in the last session the other parties were anything but supportive.

If the unionist parties tried to grab control of it now they would look like sore losers at best; bullies at worst. And neither of those is a good look.

Rather than spending so much time obsessing over details Labour and their Lib Dem/Tory allies would be better off deciding what their position will be.

The referendum process is in hand. Civil servants have been appointed to take it forward, I have no doubt they will be in regular contact with their counterparts down south. And as you know Alex Salmond has asked Dr Matt Qvortrup to provide expert advice. If any issues arise they will be handled. Meanwhile the Scottisb Government has other matters to deal with and so, I suggest, does your lot - picking a new leader for example.

Fair comment, LPW. it is good to cover all bases. Indeed, and perhaps, foolish not to: all the i's dotted and t's crossed.

However this is a political and moral judgement ultimately and not one subject to legalism ab reductio as other legal systems - seemingly entrenched - have found to their cost, pace your and my beloved French Revolution and others contemporaneously unfolding.

Legalism like militarism or parasitic finance sector supremacism may cultivate notions abroad amongst the general populace that they eternally inviolable and superior, but History is littered with concrete examples which teach us otherwise.

Hang on to your wigs, epaulettes, and abacuses, ladies and gentlemen for power comes out of the barrel of the will of the people sovereign in the final act of democratic enforcement of that will - legal eagles are consiglieres; military personnel are there to serve the will of the sovereign populace as and in so far invested by democratic means in their elected representatives; and the financial sector is a service sector that needs its wings clipped when behaving like usurious, yakuza-mafia muscle.

Others have not blinked in the past when the British gorgon not only tried to stare them down, but bloodily attempted to suppress them - why should Scots not be equal to these brother and sister epoch-makers elsewhere in the community of oppressed peoples who overthrew what needed being overthrown regardless of the swithering of the ensconced and their Girondist manipulations and fits of breathlessness in the face of the actions of the sans culottes?

At least the indigenous comprador elements show no such tenderly fainting and swooning inclinations - past or present and globally multitudinous in their tooth and claw antics in preserving their "'gifted' 'fiefdoms'" - the present propaganda war fought so gallously via the complicit organs of the MSM in Scotland and elsewhere in these isles as witness to this supra-pseudo-legal gangsterism.

In the end, the broad mass of the people - sovereign and abune regal poseurs imperialist and their assorted agents - will settle this historically overdue thing.

Postscript bias a vis dialectics: Pinochet as Thatcher and vice versa and on and on and on and Blair and Berlusconi and Brown as Reaganite acolytes. Cameron-Clegg as sociopathic, ancient Greek fusion of the Janus faces, the new lead horsemen of the Apocalypse?

Let us get out of this wickedness and irrationality asap (pre-the-Iranian-or-Syrian-or-whatever-or-whatever-puir-bloody-bugger-people next before we are - by association fixed in moral and historical concrete - the same sub-beast of the next level of Brit beast beholden to the Neroesque biggest Yanqui beast (no offense meant to decent Americans).

If we do not abrogate - if needs be and in extremis - this bloody and syphilitic vestige of a bloodily mercenary "Union", then we, as a people - in the joy of of our multitudinous roots - become, de facto, the bloody vampire we - in our common humanity and discussion - detest to the point of re-visiting the rights of man and avenues of expression enshrined in the Charter of the United Nations.

As per sports competitions, folk push themselves forward as referees, linesmen(women), arbiters, and "attuned" judges hierarchically installed ad infinitum and, consequently, unchallengeable for "legal" systems continue not to be immune to their overthrow and judicial execution of their previous modus operandi practitioners - Nothing pure about the law and its wig-waving, powdered, hangman's, black-coloured gowns.

You lot were copped for a shower of opportunistic rascals - you jurists, you - classical (and pre-"classical") historical aeons ago and across cultures - the South African Bench, or former Rhodesian Bench, or the Indian, or Cypriot, or Kenyan, or American, or Irish, or others - doth thee console unto the armour of thy collective, stab-resistant gownies, bewigged bonnets a tendency to reaction, collusion, and complicity depending on which way the moral and political imperative is blowing?).

David is right: it's about politics and power as much as legality, and ultimately it is a matter for the population. If the Scottish people, in sufficient numbers and strength of feeling, want "independence", it will come

But Scots are not suppressed within the UK. They hold, if anything, political and financial and industrial and academic power disproportionate to their relative population numbers.

The big problem for Nationalists is that, even now, after 80 years of Nationalist propaganda, most Scots do not want "independence", and many of who those say they might want it don't have it as their top priority.

So power and persuasion alone isn't working, and will not work: Scots are relatively happy with the status quo.

On the other hand, the legal question is not inconsiderable or easily dismissed. To Scots, above many other cultures, the rule of law matters. That's why we have kept our distinct legal system within the UK.

And Scotland is not a corrupt banana republic with justice denied and a compliant judiciary in the pocket of the governing classes.

So any attempt to push through "independence" which has (as illustrated above) narrow and shallow support, against legal norms and standards, will not have the support of the Scottish people and may well alienate those, like LPW I suspect, who give the law its proper place and weighting in the process.

"I was of course referring to the previous Parly when the combined vote of Britains men in Scotland combined to deny the people their wish to have an independence referendum."

That'll be the time Wendy challenged Eck to "bring it on", promising cooperation in the nats promised referendum and Eck replied "nae fear, I'm off..." thus , as you say, denyng the wish, and his own promise, to have an independence referendum.

Wendy's call was made in the same vain as those Unionists who despite telling us for years that the people didn't want a referendum/it was a distraction etc. etc. etc. Are now being as genuine as yirsel in calling for the referendum now.

The Scottish Parliament was enacted on the basis of a referendum of the people of Scotland only.So AON's arguments, if accepted, mean it could be debunked with nothing more than an Act of Parliament (Westminster).If the Scottish Parliament abolished itself tomorrow, would Westminster make them go back?One thing is certain. Referenda scare many politicians and bureaucrats witless, and AON does not need that pointing out to him.Let's hope this debate reaches the widest audience.

"The Scottish Parliament was enacted on the basis of a referendum of the people of Scotland only.So AON's arguments, if accepted, mean it could be debunked with nothing more than an Act of Parliament (Westminster)."

Ah but. The referendum was enacted with nothing more than an act of Westminster....

Westminster created the SCottish Parliament. Westminster is superior in law. Simple legal facts, not incohate emotions...

Braveheart I was drawing attention to the absurdity of divorcing the political from the legal. Or choosing arbitrary starting dates for the debate. Both of which you nevertheless do in your last post.

The referendum was a Labour manifesto promise, and carried weight in the light of the Labour vote in Scotland.The SNP made a similar manifesto promise and are following precedent.Had the Scottish people voted against having a Scottish Parliament, could Westminster have deigned one? With nothing more than one of their Acts.Is it on to ignore the results of a plebiscite when they don't go your way?

These are not inchoate emotions. They are political and legal questions.

The Succession to the Crown Act 1707 was closely linked to The Act of Union 1707 in that the latter could not have stood without the former.That Succession was challenged through the courts regarding the styling of the current monarch. It was also challenged in 1715 and 1745. Unsuccessful. But challenges nevertheless.

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"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.